S.N. Raja Rao vs State Of Karnataka

H.P. Sandesh, J

This petition is filed under Section 438 of Cr.P.C. praying this Court to enlarge the petitioner on bail in the event of his arrest in respect of Crime No.10/2022 registered by Kushalnagar Rural Police Station, Kodagu District, for the offences punishable under Sections 406, 409 and 420 of IPC.

Heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent-State.

The factual matrix of the case of the prosecution is that this petitioner was working as a President of the Lamps Co-operative Society for the period 2018-19 and 2019-20 and during his tenure, he had drawn an amount of Rs.23,86,855/-and the money drawn was not utilized for the purpose for which it was drawn and when the same came to light, notice was given and he had given an undertaking that he will repay the amount and till date he has not repaid the amount. Hence, the complaint is lodged to take action against him and based on the complaint, the police have registered Crime No.10/2022 and invoked the offences under Sections 406, 409 and 420 of IPC.

The learned counsel for the petitioner would submit that according to the complainant, the misappropriation was noticed in 2020 and there was a delay of one and half years in lodging the complaint and also there are no material with regard to he has committed the offence of criminal breach of trust. The learned counsel would contend that the petitioner is suffering from ailments and he is aged about 66 years and no need of custodial investigation and misappropriation as alleged is borne out from the records and he is ready to cooperate with the Investigating Officer.

Per contra, the learned High Court Government Pleader appearing for the respondent-State would submit that in the complaint, it is specifically stated that when the misappropriation came to light, notice was given to the petitioner and reply was also given wherein he has given an undertaking to repay the money vide his letter dated 28.09.2020 and till the date of filing the complaint, he did not repay the amount and hence case is registered and the matter is under investigation. Subsequent to the registration of the case, the document of undertaking to refund the amount is also placed on record. The very submission of the learned counsel for the petitioner that no such notice was given and no reply was given is far from truth. In order to probe the matter, the presence of the petitioner is required and hence no case is made out to invoke Section 438 of Cr.P.C.

Having heard the respective learned counsel and also on perusal of the material available on record, an accusation is made against this petitioner that he misappropriated the amount to the tune of Rs.23,86,855/- during his tenure as President and notice was given to him and reply was given on 28.09.2020, wherein he has categorically stated that he had drawn the money and he himself is sole responsible for the said money and he is ready to pay the money to the Society. But the learned counsel for the petitioner denies the very giving of notice and giving such reply. The fact that he was the President for the period 2018-2019 and 2019-2020 is not in dispute. The Apex Court while granting bail invoking Section 438 of Cr.P.C. in the case of SUPREME BHIWANDI WADA MANOR INFRASTRUCTURE PRIVATE LIMITED V. STATE OF MAHARASHTRA AND ANOTHER reported in (2021) 8 SCC 753, in a case of matter referred under Section 156(3) of Cr.P.C. for investigation held that the High Court also evidently lost sight of the nature and gravity of the alleged offences, particularly when the FIR sets out the details of the alleged acts of fraud and misappropriation of funds and hence the Apex Court set aside the bail granted by the High Court. Apart from that, the Apex Court while considering the anticipatory bail held that the Court has to consider the nature of offences, role of the person, likelihood of his influencing the course of investigation, or tampering with evidence, likelihood of fleeing justice such as leaving the country, etc.

Taking note of the gravity of the offence, the accusation made against the petitioner is that he had drawn the amount from the Society and the money drawn was not utilized for the purpose for which it was drawn and even though he had given an undertaking to repay the amount, he has not repaid the amount. When such being the factual aspects of the case, it is not a fit case to exercise the powers under Section 438 of Cr.P.C. and in order to unearth the crime of misappropriation, the presence of the petitioner is required.

In view of the discussions made above, I pass the following:

ORDER

The petition is rejected.